EXHIBIT 10(c)
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into on April
19, 1999, by and between Power Technology, Inc., a Nevada corporation and its
subsidiaries or affiliates (the "Company"), and SeaWay Trading, Inc., a Delaware
corporation (the "Consultant").
WHEREAS, the Company desires to expand, develop, and market its
products and technology including, but not limited to: development,
marketing, and sales of their products. In addition, the Company
warrants that their proprietary technology has been realized into a
working prototype.
In addition, the Company desires to expand its marketing into the
international arena, and secure overseas protection of its proprietary
technology; as well as maintain a corporate representative office within the
World Trade Center in Long Beach to achieve the aforementioned goals, subject to
the Board of Directors approval.
WHEREAS, the Company recognizes that the Consultant can contribute to
the marketing, patenting, management, and development, of the Company.
WHEREAS, the Company believes it to be important both to the future
prosperity of the business and to the Company's general interest, to retain
Consultant as consultant to the Company and have Consultant available to the
Company, for consulting services in the manner and subject to the terms,
covenants, and conditions, set forth herein;
WHEREAS, in order to accomplish the foregoing, the Company and
Consultant desire to enter into this Agreement, effective on April 19, 1999, to
provide certain assurances as set forth herein.
NOW THEREFORE, in view of the foregoing and in consideration of the
premises and mutual representations, warranties, covenants, and promises,
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. RETENTION. The Company hereby retains the Consultant during the Consulting
Period (as defined in Section 2 below), and Consultant hereby agrees to be so
retained by the Company, all subject to the terms and provisions of this
Agreement.
2. CONSULTING PERIOD. The Consulting Period shall commence on Monday, April 19,
1999, and terminate no earlier than April 30, 2001.
3. DUTIES OF CONSULTANT. During the Consulting Period, the Consultant shall use
reasonable and best efforts, to perform those actions and responsibilities
necessary to organize the marketing program via strategic alliances, on behalf
of the Company and its subsidiaries and to assist in protecting the proprietary
technology held by the Company, and international candidates for the
marketing of the aforementioned product for the Company overseas (the
"Services").
Consultant shall render such services diligently and to the best of its
ability. Consultant shall report to Xx. Xxx Xxxxx, President. Consultant shall
present various opportunities to the Company, and the Company shall be under no
obligation, to accept such opportunities.
4. OTHER ACTIVITIES OF CONSULTANT. The Company recognizes that Consultant shall
perform only those services that are reasonably required to accomplish the goals
and objectives set forth herein. The Consultant shall provide services to other
businesses and entities, other than the Company. Consultant shall be free to
directly or indirectly, own, manage, operate, control, finance, acquire, invest,
or participate, in the ownership, management, or otherwise with (collectively,
be "Affiliated" with), any business or enterprise, engaged in any business
including, but not limited to any business that is the same as, substantially
similar to, or otherwise competitive with, adverse or otherwise, related to the
Company. Consultant may be Affiliated with any entity, which may provide
services to the Company. In the event Consultant is Affiliated with any entity
which proposes to deal with the Company, Consultant shall disclose the nature of
such relationship to the Company, prior to the Company making any decision, and
shall obtain the approval of the Company, which approval shall be conclusively
deemed granted upon written notice from Xx. Xxx Xxxxx, or his, or the Company's,
designated representative. The Company hereby waives any conflict of interest
that may arise from a relationship between Consultant and any entity, which
Consultant is affiliated with. This Agreement may be assigned by Consultant to
an entity designated by Consultant, whether Affiliated or not Affiliated with
Consultant and wherever located.
5. COMPENSATION. In consideration for Consultant entering into this Agreement,
the Company shall compensate consultant as follows:
a. MONTHLY FEES AND BENEFITS.
i. RETAINER. The Company shall pay to Consultant, a
non-refundable, monthly retainer of USD $15,000: Such fee
shall be paid monthly by the Company on the first of the
month.
ii. EXPENSES. The Company shall pay all such expenses
reasonably incurred during the Consulting Period by the
Consultant, for business purposes related to, or in the
furtherance of; the goals and objectives of the Company
and/or, the provision of the Services (collectively, "Company
Purposes"), including, expenses reasonably incurred with
respect to the Consultant's travel (including Business Class
travel for flights), meals, entertainment, and other customary
and reasonable expenses, for Company Purposes. The Company
shall pay such expenses directly, or upon submission of bills,
receipts, and/or vouchers by the Consultant, by direct
reimbursement, to the Consultant. All expenses shall be
pre-approved by the Company prior to their occurrence or such
non-approved expenses are not required to be paid by the
Company to the Consultant.
b. ACQUISITION AND DISPOSITION FEES. The Company shall pay to
Consultant the following fees for the acquisition of merger candidates
or other entities, introduced through
the efforts of Consultant, resulting in a merger or acquisition, in
each year during the Consulting Period. Fees may be paid in cash or
Common Stock, at the closing of each transaction:
i. Six percent (6%) of the first USD $3,000,000 of gross asset
value price or sale price, whichever is higher, in each year;
ii. Five percent (5%) of the next USD $6,000,000 of gross
asset value price or sale price, whichever is higher, in each
year;
iii. Four percent (4%) of the next USD $9,000,000 of gross asset
value price or sale price, whichever is higher, in each year;
iv. Three percent (3%) of the next USD $12,000,000 of gross
asset value price or sale price, whichever is higher, in each
year;
v. Two percent (2%) of the next USD $15,000,000 of gross
asset value price or sale price, whichever is higher, in each
year;
vi. One percent (1%) of the aggregate gross purchase and sales
prices, whichever is higher, in each year, during the Consulting
Period, in excess of USD$25,000,000.00, on any one year.
All fee earned herein shall be due and payable in stock, based upon the
bid price, on the day of execution, of this Agreement.
c. PAYMENT DATE.
i. All fees under section 5(b) shall be payable quarterly,
when earned.
6. TERMINATION. Subject to the cure provisions contained herein, the Company may
terminate the Consulting Period upon written notice. Termination shall not occur
for a period of one year except for cause. Cause shall be defined as the
Consultant fails to perform the duties outlined in this agreement in good faith
and fails to properly service the Company's needs as reasonably expected under
the implied "good faith" provisions herein 30 days written notice shall be given
to the Consultant with the opportunity to cure within 30 days. Such Notice of
Termination shall state specifically the facts and circumstances claimed as the
basis for said Termination for the Consulting Agreement. Such notice has to be
approved by a majority of the Board of Directors of the Company
a. Not less than 15 days after receipt of the Notice of
Intended Termination, Consultant shall have the opportunity to
a full, complete, and fair hearing, in the presence of the
majority of the Board of Directors. The Board shall present to
Consultant, its reasons for the termination, including the
specific actions, in action's, omissions, or other facts
relied upon by the Board in making its determination that the
Consultant shall have the right to rebut any evidence or
allegations of wrongdoing and shall have the right to be
represented by counsel of Consultant's choice, at such
hearing. After such hearing, should the Board determine that
this Agreement shall be terminated for Cause, it shall issue a
written Final Notice of Termination to Consultant, approved by
a majority of the Board of Directors, set forth in detail, the
specific facts, conclusions, and findings of the Board, in
determining that Cause exists for the termination of this
Agreement. The Final Notice of Termination shall be effective
30 days from the original Notice of Termination unless
otherwise ordered by a majority of the Board of Directors of
the Company
7. NOTICE. Any notice required, permitted, or desired to be given,
pursuant to any of the provisions of this Agreement, shall be deemed to have
been sufficiently given or served for all purposes, if delivered in person,
or sent via Certified mail, return receipt requested, postage and fees
prepaid, or by national overnight delivery prepaid service, to the parties at
their addresses, set forth above. Copies of notices to Consultant shall be
sent to the attention of the parties, at the below address. Notice to
Consultant shall be sent to Consultant at the below address. Any party hereto
may at any time and from time to time hereafter, change the address to which
notice shall be sent hereunder, by notice to the other party given under this
paragraph. The date of the giving of any notice sent via mail, shall be the
day two days after the posting of the mail, except that notice of an address
change shall be deemed given when received. The addresses of the parties are
as follows:
TO CONSULTANT: TO THE COMPANY:
SEAWAY TRADING, INC. POWER TECHNOLOGY, INC.
One World Trade Center suite 800 0000 X. Xxxxxxx Xx
Xxxx Xxxxx, Xxxxxxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
8. WAIVER. No course of dealing, nor, any delay on the part of either
party in exercising any rights hereunder, will operate as a waiver of any
rights of such party. No waiver of any default or breach of this Agreement or
application of any term, covenant, or provision, hereof, shall be deemed a
continuing waiver, or a waiver of any other breach, default, or the waiver of
any other application of any term, covenant, or provision.
9. SUCCESSORS: BINDING AGREEMENTS. Prior to the effectiveness of any
succession (whether direct or indirect, by purchase, merger, consolidation,
or otherwise), to all, or substantially all, of the business and/or assets of
the Company, the Company will require the successor, to expressly assume and
agree to perform this Agreement in the same manner, and to the same extent,
that the Company would be required to perform it, if no such succession had
occurred. As used in this agreement, "Company" shall mean the Company has
defined above and any successor to its business and/or assets, which executes
and delivers the Agreement, provided for in this Section 9, or which
otherwise becomes bound by all the terms and provisions of this Agreement, by
operation of law. This agreement is not transferable by Consultant since it
requires the specific services of Consultant without the prior written
approval of the Board of Directors and the President of the Company
10. SURVIVAL OF TERMS. Notwithstanding the termination of this Agreement for
whatever reason, the provisions hereof, shall survive such termination, unless,
the context requires otherwise.
11. COUNTERPARTS. This agreement may be executed in two or more
counterparts, each of which, shall be deemed to be an original, but all of
which together, shall constitute one and the same instrument. Any signature
by facsimile, shall be valid and binding, as if an original signature were
delivered.
12. CAPTIONS. The caption headings in this Agreement are for convenience of
reference only, and are not intended, and shall not be construed, as having any
substantive effect.
13. GOVERNING LAW. This Agreement shall be governed, interpreted, and
construed, in accordance with the laws of the state of California, applicable
to agreements entered into and to be performed entirely therein. Any suit,
action, or proceeding, with respect to this Agreement, shall be brought
exclusively in the state courts of the state of Nevada, or in the federal
courts of the United States, which are located in Los Angeles, California.
The parties hereto, hereby agree to submit to the jurisdiction and venue of
such courts, for the purposes hereof. Each party agrees that to the extent
permitted by law, the losing party in a suit, action, or proceeding in
connection herewith, shall pay the prevailing party, its reasonable
attorney's fees, incurred in connection therewith.
14. ENTIRE AGREEMENT MODIFICATIONS. This Agreement constitutes the entire
agreement between the parties and supersedes all prior understandings and
agreements, whether oral or written, regarding Consultant's retention by the
Company. This Agreement shall not be altered or modified, except in writing,
duly executed by the parties hereto.
15. WARRANTY. The Company and Consultant each hereby warrant and agree, that
each is free to enter into this Agreement, that the parties signing below are
duly authorized and directed to execute this agreement, and that this Agreement
is valid, binding, and enforceable, against the parties hereto. The parties
further agree that they shall both use good faith efforts in their performance
of the covenants, conditions and obligations stated herein and any failure to do
so is a material breech of this Agreement.
16. SEVERABILITY. If any term, covenant, provision, or any part thereof, is
found by any court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, the same shall not affect the remainder of such
term, covenant, provision, any other terms, covenants or provisions, or any
subsequent application of such term, covenant or provision, or portion thereof.
In lieu of any such invalid, illegal, or unenforceable provision, the parties
hereto intend that there shall be added, as part of this Agreement, a term,
covenant, or provision, as similar in terms, to such invalid, illegal, or
unenforceable term, covenant of provision, or part thereof, as may be possible
and be valid, legal, and enforceable.
IN WITNESS HEREOF, the parties hereto have duly executed and delivered
this Agreement, as of the day an year first written above.
SEAWAY TRADING POWER TECHNOLOGY, INC.
By: By:
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Sardi Xxxxxxx- President Xxx Xxxxx - President
